Berkley unit not obligated to cover ATM firm in shooting

A W.R. Berkley Corp. unit is not liable to defend or indemnify an ATM company whose employee was involved in a fatal shooting because of the weapons exclusion in its policy, says a federal district court.

In November 2015, an employee of East Alton, Illinois-based Action ATM Inc., who serviced its machines, killed a man in the public restroom of a convenience store in St. Louis with his firearm, according to Thursday’s ruling by the U.S. District Court in Nautilus Insurance Co. v. Action ATM Inc. and Silver J. Franklin.

The victim’s parents filed a wrongful death suit against Action and the employee. Action’s insurer, Scottsdale, Arizona-based Nautilus, a Berkley unit, filed suit seeking a declaration it had no duty to defend or indemnify ATM or the employee.

The District Court granted Nautilus’ motion, based on the weapons exclusion in its commercial general liability policy. The exclusion says coverage does not apply in connection with the use of any weapon that causes harm.

“The weapons exclusion is quite clear and unambiguous despite Defendants’ desire for the Court to find to the contrary,” said the ruling.

“Simply looking at the allegations in the third amended complaint and the language of the weapons exclusion clause, the Court finds that the weapons exclusion clause of the Policy bars coverage under these circumstances,” said the ruling.

Attorneys in the case had no comment or could not be reached.

In July, a federal appeals court affirmed a lower court ruling and held Nautilus was not obligated to defend or indemnify a motel management company charged with negligence for failing to protect a minor who was forced into prostitution on its property, based on an “assault and battery” exclusion in its policy.